WPR does not require Congress to pass another law or resolution mandating the removal of troops," insisted the plaintiffs. [Id. at 10] Finally, the plaintiffs contended that they did, in fact, have a right of action which entitled them to the relief they sought. In their view, the right of action was based on a violation of the War Powers Clause (the Congressional power to declare war having been usurped by the defendants), and was reinforced by the War Powers Resolution: The clear and undisputed language of the WPR establishes Section 1541 is intended to assure that Congress will ex- The WPR thus evinces an "unmistakable focus" on the rights of Congress and explicitly provides the institution and it members with designated rights. Cf. Cannon v. University of Chicago, 441 U.S. at 690–693. [Id. at 47 (emphasis in original)] Additionally, the plaintiffs claimed to have a cause of action under the Foreign Assistance Act. On November 20, 1981, the defendants filed a reply to the plaintiffs' opposition to their motion to dismiss. The reply essentially restated the defendants' earlier arguments on the political question doctrine, standing, and right of action, and asserted that the plaintiffs' legal analysis was faulty insofar as applicable precedents were concerned. The defendants claimed as well that a "recent congressional initiative" demonstrated that no constitutional impasse existed requiring adjudication: Two weeks before plaintiffs filed their opposition, the Senate passed a provision to the proposed International Security and Development Cooperation Act of 1981, to provide for the continuation of the very assistance that plaintiffs request this Court to enjoin. The House Foreign Affairs Committee has also recommended the authorization of such assistance which the full House will consider shortly The recent congressional action underscores the fact that any "injury" to the plaintiffs comes from their fellow members of the Legislative Branch who are unpersuaded by plaintiffs' claims. This Circuit has found similar allegations of injury insufficient to establish jurisdiction and has rejected attempts by legislators seeking to vindicate their personal views through the court process. Reuss v. Balles, supra, Harrington v. Bush, supra, Metcalf v. National Pe- On January 4, 1982, the plaintiffs filed a brief rejoinder to the defendants' reply memorandum reiterating their previous contentions. On February 5, 1982, District Judge Joyce Hens Green issued an order denying the June 18, 1981 motion of sixteen Senators and thirteen Congressmen to intervene in the case as party defendants. Judge Green held that the prospective intervenors had failed to demonstrate that their interests would be inadequately represented by the Executive branch defendants. She did note, however, that their interests might diverge from those of the Executive defendants if and when the merits of the suit were reached; therefore Judge Green's denial of the motion to intervene was without prejudice to its later renewal if it became appropriate. The court did order the prospective intervenors to be designated as amici curiae and allowed them to file a brief on the pending motion to dismiss. On February 9, 1982, the defendants filed a supplemental memorandum in support of their motion to dismiss. The memorandum specifically referred to recent Congressional action, signed into law by President Reagan, which purportedly authorized the provision of security assistance to El Salvador. (International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113, 95 Stat. 1519 (1981)) According to the defendants, passage of the act further demonstrated that the action had to be dismissed: Congress, however, has now specifically approved the continuation of the very foreign assistance which plaintiffs seek to have this Court terminate. Rather than suffering from any diminution in its power, Congress has vigorously asserted itself in a manner wholly at odds with plaintiffs' position. The passage of the Act, in itself, proves that there has been no injury to the legislative branch upon which plaintiffs can base a claim of derivative injury. Even if there had been an injury sufficient to create standing, moreover, plaintiffs' claims have been mooted by the decision of Congress to provide economic and military assist ance. Enactment of the International Security and Development Cooperation Act of 1981 also demonstrates that this action involves a nonjusticiable political question. As previously discussed by the defendants, the Court must dismiss an action where a judicial declaration presents the potentiality of embarrassment from multifarious pronouncements by various departments on one question, where there is a need for unquestioning adherence to a political decision already made, or where the case requires the court to make an initial "nonjudicial" policy determination. Baker v. Carr, 369 U.S. 186, 217 (1962). Here, the political branches of government, to whom the conduct of this nation's foreign affairs are charged by the Constitu- On February 10, 1982, the Congressional amici filed a brief in support of the defendants' motion to dismiss. Their arguments roughly paralleled those of the defendants and were based on the contention that the court lacked subject matter jurisdiction over the action since the "case or controversy" requirement of Article III of the Constitution had not been met. The amici maintained that: (1) the case presented a nonjusticiable political question, particularly since every "subcommittee, committee, or full house of Congress which considered plaintiffs' arguments for terminating aid to El Salvador rejected them," and if the court intervened it would be "substitut[ing] its judgment for the policy judgment of the political branches of our government" without any expertise or judicially manageable standards [Brief of Amici Curiae, February 10, 1982, at 21]; (2) the plaintiffs lacked standing because they had not suffered injury-in-fact since "no objective injury to their vote has been alleged . . ., nor do they even seek any remedy that would give them any opportunity to vote" [Id. at 31-32]; (3) prudential considerations counseled dismissal of the complaint under the holding of the Riegle case, supra, since legislative redress was "not only available, but contemplated under the War Powers Resolution" [Id. at 34]; and (4) the plaintiffs' claims were not ripe for judicial review since the Executive and Legislative branches had not reached a constitutional impasse. Also on February 10, 1982, the amici filed a request to participate in oral argument on the motion to dismiss. This request was denied in an order filed the same day by Judge Green. On February 12, 1982, the defendants' motion to dismiss was argued and taken under advisement. On February 18, 1982, the plaintiffs filed two posthearing memoranda: a reply to the amici's brief and a reply to the defendants' supplemental memorandum. The former basically set forth arguments already made by the plaintiffs in prior submissions to the court. The latter disputed the defendants' contention that passage of the International Security and Development Cooperation Act of 1981 rendered the issues in the case moot or nonjusticiable. According to the plaintiffs, the 1981 legislation in no way affected their claim that U.S. troops were in El Salvador in violation of the War Powers Resolution since the act did not purport to authorize the assignment to El Salvador of members of the armed forces equipped for combat and accompanying Salvadoran forces engaged in hostilities. On February 23, 1982, the defendants filed a response to the plaintiffs' post-hearing memoranda, once again arguing that the plaintiffs lacked standing and that the case was barred by the political question doctrine. Status-The case is pending in the U.S. District Court for the District of Columbia. The complete text of the February 5, 1982 order of the district court is printed in the "Decisions" section of this report at page 483. IV. Balancing the Speech or Debate Clause With the Law of Defamation Holy Spirit Association for the Unification of World Christianity v. Fraser Civil Action No. 78–1153 (D.D.C.) This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978 by the Holy Spirit Association for the Unification of World Christianity ("Unification Church") and Bo Hi Pak, a South Korean citizen. Named as defendants in the suit were U.S. Representative Donald M. Fraser from Minnesota, Chairman of the Subcommittee on International Organizations of the House Committee on International Relations ("Subcommittee") and two staff members of that Subcommittee, Edwin H. Gragert and Martin J. Lewin. The complaint contained two counts. The first count alleged a conspiracy by the defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specifically, it was claimed that the defendants and other unnamed individuals conspired to deprive the plaintiffs and "all persons associated with the Unification Church and Bo Hi Pak" of their rights of freedom of speech, freedom of association, freedom of expression and freedom of religion. The plaintiffs alleged that Rep. Fraser distributed defamatory materials regarding the plaintiffs; attempted to "deceive and trick" Bo Hi Pak during Pak's testimony before the Subcommittee; caused the payment of fees to witnesses who testified before the Subcommittee; and leaked or permitted leaking of testimony given by Bo Hi Pak in executive session. The plaintiffs claimed that these activities, in addition to violating their rights of freedom of religious exercise and association, damaged their reputations and resulted in financial damage to them due to curtailment of their activities and a reduction in financial contributions to the Unification Church. As relief under the first count, the plaintiffs sought an injunction barring the defendants from violating or conspiring to violate the plaintiffs' rights under the First, Fourth, or Fifth Amendments, $5 million in compensatory damages, and $10 million in punitive damages. The second count asserted that the defendants deprived the plaintiffs of their constitutional rights. It was also specifically alleged, in addition to the acts alleged in count one, that defendants Gragert and Lewin, representing themselves as architects, fraudu lently gained entry to a Washington, D.C. Unification Church building. The plaintiffs claimed that as a result of this action by Mr. Gragert and Mr. Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subjected to a warrantless search, and they were deprived of the due process of the law. The plaintiffs contended that the activities complained of in Count II also resulted in damage to their reputations and financial harm. Their demands under Count II included an injunction, $5 million in compensatory damages and $10 million in punitive damages, the same relief demanded under Count I. 1 On October 10, 1978, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment on the ground that the Speech or Debate Clause of the U.S. Constitution 1 provided them with immunity from suit and liability because the actions complained of were within the sphere of legitimate legislative activity. Additionally, the defendants asserted that the complaint failed to state a claim for which relief could be granted. On December 11, 1978, the plaintiffs filed an opposition to the motion to dismiss contending that the Congressional defendants were not absolutely immune from suit because no legislative function of any of the acts complained of had been shown. Further, because the plaintiffs termed the defendants' conduct "unconstitutional and unlawful", they argued it could not be protected by legislation or other privilege. On January 25, 1979, the Unification Church filed an amended complaint, which, while restructuring the allegations of the original complaint, contained each of the allegations set out in the original. Additionally, Count I of the amended complaint contained an allegation which had not been made in the original complaint: that Rep. Fraser maliciously and without any valid legislative purpose publicly distributed outside Congress various materials regarding the plaintiffs, or persons associated with the plaintiffs, which were defamatory and libelous per se. The alleged statements were to the effect that the Unification Church was organized by a director of the Korean Central Intelligence Agency who used it as a political tool; that Colonel Pak "was in trouble because he had attempted to initiate into his church (i.e., to have sexual relations with) the wife of a visiting ROK official"; that the Unification Church interpreted the Bible in sexual terms and maintained that religious experience is interrelated with sex; and that Sun Myung Moon, the leader of the church, was once arrested because of the sexual practices of the church. The plaintiffs claimed in the amended complaint that they advised the defendants that the statements were false and defamatory. The plaintiffs also alleged that the committee, prior to publication of the subcommittee's final report, at the direction of Rep. Fraser, falsely and fraudulently represented to the plaintiffs that subcommittee procedures prevented advance notice and comment on materials to be published. 1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] |